Understanding the Problems in Iraq's Shi'i Draft Personal Status Law

JURIST Guest Columnist Haider Ala Hamoudi of the University of Pittsburgh School of Law discusses the hasty and sloppy manner in which Iraq's highly controversial draft Shi'i Personal Status Law was prepared ...

There has been much controversy over the Iraqi cabinet's approval of a draft Shi'i Personal Status Law [Arabic], applicable exclusively to the Shi'a in Iraq. The draft law purports to bring the regulation of personal status—encompassing family law, wills and inheritance—in conformity with the religious rules articulated by Shi'a Islam's premier juristic authorities. The cabinet has sent the draft law to the Iraqi legislature for its consideration and potential enactment.

The criticisms of the draft law that have appeared in the press concerning women's rights are broadly correct. However, the focus of this article will be to demonstrate that the draft law is also sloppily drafted and poorly organized, so much so that the prominent Shi'a juristic authorities themselves have sharply denounced it. It is thus probably best described as a political stunt, cobbled together hastily and endorsed by Shi'a politicians on the eve of national elections merely to burnish Islamist credentials rather than actually pass meaningful legislation.

Certainly—even leaving aside human rights concerns—the task of drafting a modern Personal Status Law that is based on juristic rules would be an extraordinarily complex task. The jurists are not lawyers, nor do they aspire to be. Their rules are intended to be the basis for living a pious and righteous life, as such they differ markedly from the laws of a state in its regulation of conduct and social order. A thorough legislative representation of juristic thought in any given area of law requires a sophisticated and nuanced understanding of both Islamic law and state law, a carefully considered methodology by which the translation of the religious ideas are to appear as legislation or not and a holistic appreciation of the various areas of law that might be affected. Hence, it took the exemplary Ahmed Cevdet Pasha and his law commission fully sixteen years to draft an Ottoman Civil Code, the Mecelle—based on Sunni, and primarily Hanafi, juristic rules.

To say that the authors of this draft personal status law did not rise to the challenge is to understate the matter. They did not even try. Below, I offer a few specific examples of how the religious rules pose significant legislative obstacles and the poorly considered way that the drafters dealt with the obstacles.

First, the phrasing of the religious rules—developed from foundational texts using medieval techniques —traffic in arcane details and obscure hypotheticals that are difficult to incorporate into legislation. For example, below are the rules of Grand Ayatollah Sistani concerning the familiar Islamic limitation on a decedent's bequests to one-third of the decedent's estate, the remainder of which is to go to close family members—heirs who inherit specific obligatory proportions:

There is no problem in dividing the permission [of the heirs] into parts after death, or during life, or not doing so. Of the two, the first is preferred.

If one bequeaths an item, and then bequeaths a third [of the estate] beyond it, the bequest of the third is effective and the remainder depends on the permission of the heirs. So if the bequeather says, "Two stallions to Zaid, and one third of the rest to Umru," then the bequest to Umru is valid. However, the bequest to Zaid is valid upon the approval of the heirs, and if not approved, then it is valid to one third of the horses and the two thirds are to the heirs.

These are highly edited examples from several pages of exegesis on the one-third rule. Yet they illustrate the challenge facing any drafter translating this material into national legislation. The drafters of the Shi'i Personal Status Law did not bother with nuance but merely indicated as follows in Article 8: "The bequest is obligatory and effective to the limit of one-third of the estate. And as to what exceeds one-third, the bequest is not effective except with the permission of the heirs." Article 9—also relevant and discussed further below—does not make the permission of an heir referenced in Article 8 effective while that heir is a minor. The proposed formulation is exceedingly reductive and likely to lead to inaccurate results. It does not lay out the manner in which permission might be given by an heir, what to do when permission is given by some and not others or how to treat permission as to part of the bequest but not another part, among many other things. For a draft law whose very purpose is to permit the Shi'a to live by the rules of their sect, such sloppiness and imprecision is inexcusable.

A second problem with the juristic rules is that they often adopt formulations that seem almost impossible to easily apply in modern courts. An excellent example concerns puberty, which has an important religious effect as it is the point at which a person is deemed to have reached adulthood. Under the religious rules, at puberty, a person can marry, enter into contracts, devise wills, dispose of property and be held responsible for crimes.

By contrast, modern Iraqi law determines the age of legal majority to be eighteen. The draft law does not seek to disturb that, except as to matters relating to personal status. This creates difficulties on its own given the overlap between matters of personal status and other areas of law. For example, if a person is entitled to inherit as an heir upon reaching puberty, may that person then dispose of the property inherited in an ordinary sale? If not, then this curtails their right to "inherit" property at puberty. Yet if so, then the general legal age of majority to conclude a contract for sale does not apply as to contracts for the sale of inherited property. Both of these results are difficult to justify.

The approach of the draft law is haphazard and suggests that little, if any, thought was given to the matter. Article 9 does not recognize any permission an heir might give for part of their inheritance to be bequeathed to a third-party so long as that heir is a "minor." The term used for "minor" is the same one used throughout Iraqi law and refers specifically to those under the age of eighteen. No reference is made as to puberty—which is defined later in the draft—nor does the draft anywhere suggest a different definition for "minor" as to matters of personal status.

In Article 16, by contrast, the right to bequeath property exists so long as the person bequeathing it has attained puberty. Thus, a person bequeaths property based on one conception of adulthood and inherits it based on another—hardly a sensible formulation.

The other problem relating to puberty is one of application. The Shi'a rules deem puberty attained at the age of nine lunar years for a girl. As for a boy, the age is fifteen lunar years unless particular signs of puberty appear—among them pubic hair or wet dreams. While it is logistically possible—if morally offensive—to deem a nine year old an adult for personal status purposes, it is hard to see how the matter of capacity to marry, inherit or devise property can depend on factual determinations concerning pubic hair or wet dreams. Moreover, if such is the intent, careful thought would have to be given as to how to amend the Law of Evidence or the Civil Procedure Code to offer a process by which such things could be proven.

The draft law addresses none of this in satisfactory detail. Article 16(1) reads as follows: "Puberty means the completion of nine lunar years . . . for females, or fifteen lunar years for males, or the realization of one of the bodily signs relied upon by the Muslim jurists for the onset of puberty among males." Politically, this formulation is astute in that it replicates the juristic rules without disclosing them in the level of detail that would prove embarrassing to the drafters. Legally, however, it is an absolute nightmare. It obligates a judge to actually attempt to determine whether or not a fourteen year old boy is able to bequeath property based on whether he has ever had a wet dream or has pubic hair, without offering anything by way of procedure or evidentiary rules to assist the judge in performing this extremely unusual—and no doubt uncomfortable—task.

Finally, religious rules deal with virtue and sin, meaning that not all conduct needs to be described as permissible or impermissible. The goal is not thin compliance with state dictate, but rather pleasing God. Hence, some activities are "recommended," others are "disfavored" and still others are "neutral." Very few of these nuanced gradations are easily translatable into modern legislation.

As an example of the interplay of such religious edicts, Grand Ayatollah Sistani indicates that a wife's obligation to her husband does not include housework of any kind, but rather such activities are "recommended" for a wife to do. By contrast, she is prohibited from leaving the home without her husband's permission and is generally obligated to submit to her husband's sexual demands when made.

By contrast, a husband is obligated to financially provide for his wife in all matters—including food, clothing and shelter. A husband is also obligated to divide his nights equally among his wives if he has more than one; however, it is "recommended" that he spend the first seven days of his marriage to a virgin wife with her but only the first three days of his marriage to a nonvirgin wife with her. None of these nights needs to be spent with the existing wives in compensation.

The drafters translated all of this material into legislation in an exceedingly simplistic fashion. They simply omitted mention of all "recommended" and "disfavored" matters, retaining only those that are "obligatory" or "prohibited." The result is a distortion of the rules upon which the law is supposed to be based.

Viewed in isolation, it is intellectually defensible for the law to purport to follow Shi'i marriage rules and yet not include mention of the "recommendation" that the wife perform housework. Yet, the failure to include the "recommendation" that the husband spend seven consecutive days with a virgin bride is harder to justify to the extent that one is maintaining that this law is a faithful rendition of the Shi'i rules. This is particularly so given that the husband's "obligation" to provide equal time to his wives each night is included in the legislation. What this means is that a husband under this law is prohibited from doing the very thing the jurists declare to be recommended—spend extra time with a newly married wife. Indeed, not only is this a distortion of the Shi'i rules, it is further from them than the current Iraqi Personal Status Code—which permits polygamy and contains no rules respecting how much time should or should not be spent with each wife. Hence, in this instance, a hastily drafted piece of legislation that is intended to permit the Shi'a to abide by their own sectarian rules deviates more from those rules than the existing law does.

Little wonder, then, that Grand Ayatollah Bashir al-Najafi decried this law as "rife with flights of fancy in legal and juristic formulations that render it impossible that a jurist would find it acceptable." Given the sharp denunciation by a Grand Ayatollah, I assume the draft will be properly assigned to history's dustbin. Still, the effort deserves to be exposed as the exercise in demagoguery that it has proved to be.

Haider Ala Hamoudi is an Associate Professor of Law at the University of Pittsburgh School of Law. His scholarship focuses on Middle Eastern and Islamic Law, particularly as it pertains to matters of commerce. Professor Hamoudi spent most of 2009 in Baghdad advising the Constitutional Review Committee of the Iraqi Parliament responsible for developing amendments to the Iraqi Constitution aimed at national reconciliation on behalf of the US Embassy in Baghdad. In 2013 he published his latest book, "Negotiating in Civil Conflict: Constitutional Construction and Imperfect Bargaining in Iraq," chronicling the drafting and subsequent evolution of the Iraqi Constitution. He also maintains a blog on Islamic Law.

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